NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 12 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PORTLAND MARCHE, LLC, a California No. 24-141 limited liability company; CERES D.C. No. RICHLAND, LLC, a California limited 3:21-cv-00569-IM liability company,

Plaintiffs - Appellants, MEMORANDUM*

v.

FEDERAL NATIONAL MORTGAGE

ASSOCIATION (FANNIE MAE), a federally chartered corporation also known as Fannie Mae,

Defendant - Appellee.

Appeal from the United States District Court for the District of Oregon Karin J. Immergut, District Judge, Presiding

Argued and Submitted April 2, 2025 Portland, Oregon

Before: BYBEE, LEE, and FORREST, Circuit Judges. Dissent by Judge BYBEE.

Plaintiffs-Appellants Portland Marche, LLC and Ceres Richland, LLC

(collectively, Portland Marche) appeal the district court’s judgment enforcing their

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. settlement with Defendant-Appellee Federal National Mortgage Association

(FNMA). We have jurisdiction under 28 U.S.C. § 1291, and we review the district

court’s enforcement of a settlement agreement for abuse of discretion. Wilcox v.

Arpaio, 753 F.3d 872, 875 (9th Cir. 2014). An abuse of discretion occurs if the lower

court bases its decision “on an error of law or clearly erroneous findings of fact.”

Maynard v. City of San Jose, 37 F.3d 1396, 1401 (9th Cir. 1994) (internal quotations

and citations omitted). We agree that the parties’ settlement is enforceable but

disagree with the remedy imposed by the district court.

Portland Marche argues that the parties’ settlement based on its August 17

proposal is an unenforceable “agreement-to-agree” because (1) the proposal is

missing material terms and (2) the parties’ agreement was conditioned on approval

of final settlement documents. We address each argument in turn.

1. Omission of Material Terms. At the outset, FNMA argues that Portland

Marche forfeited any argument that the August 17 proposal lacked material financial

terms because Portland Marche failed to raise this issue to the district court. We

generally do not “entertain[] arguments on appeal that were not presented or

developed before the district court.” In re Mercury Interactive Corp. Sec. Litig., 618

F.3d 988, 992 (9th Cir. 2010) (internal quotations and citations omitted). “Although

no bright line rule exists to determine whether a matter has been properly raised

below, an issue will generally be deemed waived on appeal if the argument was not

2 24-141 raised sufficiently for the trial court to rule on it.” Id.

Here, FNMA drafted formal settlement documents after agreeing to Portland

Marche’s August 17 proposal, which Portland Marche reviewed and commented on

concerning the lack of financial details and some structural issues. FNMA revised

the documents to address Portland Marche’s concerns, but Portland Marche refused

to accept the revised documents or to continue negotiations. The only specific

provisions that Portland Marche identified as objectionable were the addition of a

third party to the Reinstatement Agreement and a confidentiality provision, both of

which FNMA agreed to remove. In opposing FNMA’s eventual motion to enforce

the parties’ settlement, Portland Marche argued only that there was no final and

enforceable settlement because the parties made their agreement contingent on

formal documentation.

At the hearing on FNMA’s motion, the district court pressed Portland Marche

to identify the terms in the revised settlement documents to which it objected. Again,

the only terms that Portland Marche identified, beyond arguing generally that the

drafts included “new terms,” were the provisions that FNMA had previously agreed

to remove. Portland Marche raised no objection to any other specific provision,

including the financial terms. On this record, we conclude that Portland Marche

forfeited the argument it now raises concerning missing material terms.

Even if we were to conclude that Portland Marche did not forfeit this

3 24-141 argument, we disagree that the August 17 terms are unenforceable as incomplete.

“[T]he district court may enforce only complete settlement agreements.” Callie v.

Near, 829 F.2d 888, 890 (9th Cir. 1987) (citations omitted) (emphasis in original).

Whether a settlement is “complete” is governed by the law of the forum state. See

Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989). Under Oregon law, an

agreement to make a contract “is not binding unless all the terms and conditions are

agreed upon, and nothing is left to future negotiation.” Slayter v. Pasley, 264 P.2d

444, 449 (Or. 1953). But the Oregon Court of Appeals has since instructed that

“parties who agree on the essential terms of a contract may intend those terms to be

binding and, at the same time, implicitly agree to bargain in good faith on the

remaining terms. That fact does not prevent a court from enforcing the parties’

agreement.” Hughes v. Misar, 76 P.3d 111, 116 (Or. Ct. App. 2003) (emphasis

added); see also Dalton v. Robert Jahn Corp., 146 P.3d 399, 403 n.7 (Or. Ct. App.

2006) (“Although the parties might not have formally agreed to operate in good faith,

the law implies in every agreement ‘a promise of good faith to effectuate the

reasonable expectations contemplated by the agreement.’”) (citation omitted).

Here, the parties did agree on essential terms for reinstating Portland Marche’s

loan and clearly signaled they intended their agreement to be binding. And as the

district court noted, Portland Marche refused to negotiate to complete the settlement

documentation, and failed to “identify any material terms of the settlement

4 24-141 agreement yet to be agreed on.” Under these circumstances, Portland Marche’s

refusal to cooperate with FNMA in working out the final documents does not render

the parties’ settlement unenforceable. See Hughes, 76 P.3d at 116.

2. Documentation Contingency. Portland Marche also argues that the

parties’ settlement based on its August 17 proposal is an unenforceable “agreement-

to-agree” because the agreement was contingent on approval of final settlement

documents. Whether a settlement is binding before final memorialization depends

on whether the parties “intend the writing to be a condition precedent to the taking

effect of the agreement.” Gen. Realty Corp. v. Douglas Lowell, Inc., 354 P.2d 306,

310 (Or. 1960) (emphasis added). Where a contract provision is ambiguous, the

court “examine[s] extrinsic evidence of the contracting parties’ intent.” Yogman v.

Parrott, 937 P.2d 1019, 1022 (Or. 1997) (en banc).

In making its August 17 settlement proposal, Portland Marche stated it was

“willing to resolve this case” on its proposed terms. FNMA accepted Portland

Marche’s proposal without condition. And immediately thereafter the parties

informed the court that they had “reached a complete and final settlement in

princip[le].” To the extent Portland Marche’s language was ambiguous regarding

the parties’ intent, the district court correctly relied on their notice to the court, its

own 60-day order of dismissal, and the parties’ cessation of trial preparation. Thus,

we conclude that the district court did not err in concluding that final documentation

5 24-141 was not a condition precedent to the parties’ settlement.

3. Remedy. Because Portland Marche (1) forfeited its argument that the

parties’ initial settlement terms were incomplete, (2) had ample opportunity to

review and comment on the revised settlement documents and (3) FNMA agreed to

remove the provisions Portland Marche identified as objectionable, we disagree that

the parties must “continue negotiating in good faith on terms of the settlement

agreement.” On the record before us, the parties’ settlement terms are reflected in

the Second Draft Settlement and documents referenced therein, except as to those

terms that Portland Marche objected to and FNMA agreed to remove. Portland

Marche’s refusal to continue negotiating the final documentation indicates that it had

a change of heart about settling, not that it objected to the written terms beyond those

that it identified. Because the record shows the parties intended to be bound by their

initial agreement, Portland Marche was not entitled to walk away simply because it

no longer wished to settle. Thus, enforcing the revised settlement documents with

the agreed modifications is consistent with the parties’ manifested intent. See

Dalton, 146 P.3d at 406.

AFFIRMED IN PART and REVERSED IN PART.

6 24-141

FILED

MAY 12 2025

BYBEE, J., dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

The district court concluded that Portland Marche’s eight-bullet point

settlement proposal left “no additional material terms [] to be negotiated.” But

Portland Marche’s proposal does not indicate whether over $600,000 of its past

payments would count against the principal that it owed to FNMA, as Portland

Marche contemplates, or instead against protective advances and other non-principal

obligations, as FNMA proposed. Nor does the proposal contain an “objective

method agreed upon by which the parties can settle” how to account for those

payments “as a matter of fact.” See Siegner v. Interstate Prod. Credit Ass’n of

Spokane, 820 P.2d 20, 29 (Or. Ct. App. 1991). How to credit Portland Marche’s past

payments is a material term that is missing from the proposal. Consequently,

Portland Marche’s proposal was too indefinite to form a contract.

I respectfully dissent.